My view: Why I voted 'present' instead of 'no'

In a recent My View in the Deseret News, two writers who attacked my judicial confirmation votes clearly want me to support even the most left-wing judicial nominees ("Sen. Orrin Hatch's fillibuster loophole" March 20). But they just as clearly do not understand either my voting record or the judicial confirmation process.

The Senate cannot vote on confirmation, which requires a simple majority, until it ends debate by a cloture vote, which requires a super majority of 60. Failure to reach that threshold is a filibuster. Before March 2003, no judicial nominee who had majority support for confirmation had ever been defeated by a filibuster. Democrats changed all that. In less than 18 months, they forced 20 cloture votes on 10 different nominees to the U.S. Court of Appeals. Every one of those votes failed, and several of those nominees were never confirmed.

The writers reference a 2005 article I wrote in the Utah Law Review explaining why judicial filibusters should not be part of the confirmation process. Despite what the writers of the column wrote, I still believe that. But now that Democrats have entrenched filibusters in the confirmation process, I still have to balance my general opposition to judicial filibusters with my specific opposition to certain judicial nominees. Three times, I have voted "present" on a motion to end debate on a particularly controversial nominee. By doing so, I neither endorsed judicial filibusters nor helped advance nominees who I believe are unqualified for the federal bench.

It is a mystery why these writers object now, since I have not cast such a vote on a failed judicial nominee in more than a year. Nonetheless, they note that "present" and "no" have the same procedural effect on a vote to end debate. Even if I had voted "yes" as they now say I should, however, it would not have changed the outcome. In the 2011 cloture vote they cite on the controversial nomination of Caitlin Halligan to the U.S Court of Appeals, for example, only 54 senators voted to end debate. That's not even close to the 60 votes required.

These two writers, one of whom heads a group of Democrats, no doubt also object to my votes on other matters outside the judicial confirmation process. But a different political agenda hardly justifies distorting my votes or presenting a misleading commentary on the judicial confirmation process.

I fought against the campaign by Democrats to make filibusters a permanent feature of the judicial selection process, but Democrats got what they wanted. I can neither endorse that development nor vote for nominees whose judicial philosophy makes them unfit for judicial service. I care more about staying consistent with those principles than I do about pleasing misinformed political sensibilities.